Information Note on the Court’s case-law 193
February 2016
Soares de Melo v. Portugal - 72850/14
Judgment 16.2.2016 [Section IV]
Article 8
Article 8-1
Respect for family life
Placement of children for adoption on grounds of mother’s poverty and refusal to undergo sterilisation: violations
Facts – From 2005 the authorities were repeatedly notified that the applicant, a Cape Verdean national, and her ten children were living in precarious conditions as she was unemployed and the children’s father was polygamous and often absent from the family home. In January 2007 proceedings before the Child and Youth Protection Commission led to a protection agreement for the children below the age of majority being signed with the applicant and her husband. As there was no improvement in the situation, the Family Court initiated child protection proceedings in September 2007, on the grounds that the applicant’s living conditions were inadequate and she was neglecting her children. The family was monitored by the court’s social services team. In June 2009 the court inserted additional clauses in the protection agreement, including a requirement for the applicant to prove that she was attending hospital sessions with a view to undergoing sterilisation by tubal ligation. In May 2012, in view of the couple’s failure to abide by their undertakings, the Family Court ruled, among other things, that the applicant’s seven youngest children should be taken into care with a view to adoption and that the parents should be deprived of parental responsibility in respect of those children and denied all contact with them. None of the applicant’s subsequent appeals against that judgment were successful. At the time of the European Court’s judgment, her appeal before the Constitutional Court was still pending. In November 2014 the European Court allowed a request from the applicant for an interim measure granting her a right of contact with her children. Since March 2015 she has made weekly visits to see her children in the three separate institutions in which they have been placed.
Law – Article 8: The placement order with a view to adoption, the deprivation of parental responsibility and the prohibition of all contact constituted “interferences” with the exercise of the applicant’s right to respect for her family life. The interferences had had a basis in law and had pursued the legitimate aim of protecting the rights and freedoms of others.
(a) The order for the applicant’s seven youngest children to be taken into care with a view to their adoption
(i) The applicant’s precarious circumstances – The applicant had ten children to bring up on her own. She lived on a monthly family allowance of EUR 393 and relied on food banks and donations. Despite observing her situation of manifest material deprivation, the domestic authorities had not made any attempt to compensate for such inadequacies through additional financial support to meet the family’s basic needs and to cover the costs of admitting the youngest children to a crèche so that the applicant could take up paid employment. The social services had expected the applicant to submit a formal application setting out her needs, even though they themselves had already noted and reported those needs. However, the authorities should first have taken practical steps to allow the children to live with their mother before it placed them in care and initiated an adoption procedure. Furthermore, the role of the social welfare authorities was precisely to help people in difficulty, to offer them guidance and to advise them. Special vigilance and increased protection were essential in the case of vulnerable individuals.
In addition, at no time during the procedure had there been any mention of violent conduct, mistreatment or sexual abuse in respect of the children, or of any emotional deficiencies, health concerns or mental disturbance on the part of the parents. On the contrary, the Family Court had observed that the emotional ties between the applicant and her children were especially strong. There was no indication in the file at domestic level that any examination of the children, at least the oldest ones, had ever been carried out.
(ii) The applicant’s undertaking to be sterilised as part of the protection agreement – The insertion in the protection agreement signed with the social services of an undertaking by the applicant to be sterilised was a particularly serious matter. The social services could have recommended contraceptive methods of a less intrusive nature. Even assuming that the applicant had willingly agreed to this initiative, she had ultimately refused to undergo the operation and her refusal had clearly been held against her by the domestic courts. Moreover, recourse to a sterilisation procedure should never be a condition for retaining parental rights. Accordingly, the mother’s failure to honour her undertaking to undergo such an operation should on no account be held against her, even in the case of a voluntary and informed undertaking on her part.
(b) Prohibition of all contact between the applicant and her seven youngest children – Despite the lack of any signs of violent conduct or abuse against the children, the applicant had been deprived of all contact rights even though her children were between 7 months and 10 years old and her appeal against the Family Court’s judgment was still pending. Furthermore, the children had been placed in three different institutions. This had broken up not only the family but also the siblings as a unit and had been contrary to the children’s best interests.
(c) The decision-making process – In reaching their decisions, the domestic courts had mainly relied on reports drawn up on the applicant in previous years. It had not ordered any psychological assessment of the applicant and her children by an independent expert. Nor had the Court of Appeal considered the material submitted by the applicant in support of her appeal to show that she had attempted to find solutions to her problems after having her children taken from her. On the contrary, it had simply reproduced the single judge’s decision verbatim without carrying out an effective review of the situation.
In addition, the applicant had not been represented by counsel in the proceedings before the Family Court, although on account of the complexity and subject matter of proceedings for the protection of children at risk and the extremely serious and delicate consequences of such proceedings both for the children and for the parents, additional precautions and steps should have been taken to ensure not only that the applicant understood exactly what was at stake in the proceedings but also that she could take part effectively in them.
(d) Conclusions – There had been a violation of Article 8 of the Convention i. on account of the order for six of the applicant’s children to be taken into care with a view to their adoption; ii. because the placement and adoption order had taken into account the applicant’s failure to honour her undertaking to be sterilised by means of tubal ligation; iii. on account of the prohibition of all contact between her and her children, and iv. because the decision-making process that had led to the children being placed in care with a view to their adoption had been unfair on account of the applicant’s lack of effective involvement.
Conclusion: violations (unanimously).
Article 41: EUR 15,000 in respect of non-pecuniary damage.
(See also the Factsheet on Parental rights)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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